J v Attorney-General - [2017] NZHC 701

NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY (COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE US/ABOUT-THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON- PUBLISHING-JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-000025 [2017] NZHC 701

UNDER
The Statutes of Westminster the First

1275, The Bill of Rights 1688, The
Judicature Amendment Act 1982, The

New Zealand Bill of Rights Act 1990, The Criminal Procedure (Mentally Impaired Persons) Act 2003, The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and the Common Law

IN THE MATTER

Of an application for Judicial Review, Declarations of Inconsistency, and Public Law Compensation

BETWEEN

J, COMPULSORY CARE RECIPIENT, TE ROOPU TAURIMA O MANUKAU TRUST BY HIS WELFARE GUARDIAN, T

Applicant

AND

THE ATTORNEY-GENERAL First Defendant

THE DISTRICT COURT AT MANUKAU Second Defendant

THE FAMILY COURT AT MANUKAU Third Defendant

THE CARE CO-ORDINATOR Fourth Defendant

THE CARE MANAGER Fifth Defendant

J v THE ATTORNEY-GENERAL [2017] NZHC 701 [11 April 2017]

Hearing: 27-28 February 2017

Counsel:

A J Ellis and G K Edgeler for Applicant
A M Powell and M J McKillop for First Defendant
M G Coleman and I S Auld for Fourth Defendant

Judgment:

11 April 2017

JUDGMENT OF COLLINS J

Introduction

[1] This judgment addresses five pre-trial questions of law concerning the validity of a number of orders made in relation to J pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act).

[2] I explain in [41] the five questions that are addressed in this judgment. For present purposes it is sufficient to say that the questions focus upon aspects of the lawfulness of J’s detention since February 2006 under the IDCCR Act.

[3] The questions have been designed to address issues that were able to be heard on an urgent basis. Other issues will be addressed when the substantive proceedings are heard and determined. The substantive proceedings are an application for judicial review, an appeal from a judgment of Judge A P Goodwin delivered in the Manukau Family Court on 27 February 20171 and an application for a review
brought under ss 102 and 104 of the IDCCR Act.2

1      [H] v [J] [2017] NZFC 1079.
2      102 Judge may call for report on care recipient or summon care recipient
(1) A High Court Judge may make an order directing a district inspector or 1 or more other persons—
(a)    to visit and examine a care recipient who is detained in a facility; and
(b) to inquire into and report on any matter relating to that care recipient that the Judge specifies.

(2) Whether an order under subsection (1) has been made or not, a High Court Judge may make an order directing a care manager to bring a care recipient for whom the care manager is responsible before the Judge in open court or in Chambers, for examination at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading J v Attorney-General

Details

AGLC: J v Attorney-General [2017] NZHC 701
Case: [2017] NZHC 701
Decision Date: 11 April 2017

CaseChat Overview and Summary

This case is an application for judicial review, appeal, and review concerning the validity of a number of orders made in relation to J pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act). The orders were made in relation to J, who has an intellectual disability and a history of violent behaviour. The key issues addressed in this judgment were the lawfulness of J’s detention under the IDCCR Act since February 2006. The court found that the original and amended orders issued under the CPMIP Act were lawful, the compulsory care orders were lawfully renewed prior to them expiring, and the extensions or deferrals of the expiration of the compulsory care order did not lapse. The court also found that there was no jurisdiction for the Family Court to retrospectively reinstate an expired compulsory care order in circumstances where there was no pending application for an extension under s 85 of the IDCCR Act. The court concluded that there would be no order for costs in the circumstances of this case.

Orders